Research On Patent License Problems In The Technical Standards Based On The Standard Life Cycle

This paper is supported by the Key project of National Social Science Fund “Research on the coordination and Transformation of technical innovation, patent, standard”, which is to analyze, investigate and study the patent license problems of technical standards based on standard life cycle.In the background of global financial storm, economic crisis and industrial structure adjustment, the competition among the market is no longer limited to products, technologies and services, but also more and more countries and enterprises focus on the competition of technical standards. Nowadays the international competition no longer depends on the land, labor, and capital in the industrial era, but also lies in whether to grasp the draft rights and Revision rights of technical standards. “Products have not moved and standards have started already” has already become the general rules of the game in international competition. With the advent of the era of knowledge economy, the performance of the social economic benefits is from the traditional era of the expansion of production scale and improvement of product quality to era of technical innovation and intellectual property protection. In the era of knowledge economy, the thing that people emphasize the intellectual-property rights causes the traditional boundaries between technical standard and patent to be broken, and the technical standards which emphasize the public natures and the patents which emphasize private rights quickly combine with each other in areas of the management, investment, international trade, market. More and more enterprises and even the national government improve the patent standardization to the strategic level, committed to promote the integration of patents and technical standards, turning technology to patents, turning patents to standardization, in order to use standards to monopolize the market.With the integration of technical standards and patents, patent license problems of technical standards are getting more complex and serious. The paper adopts methods such as combining a variety of disciplines theory, combining theoretical analysis with countermeasure analysis, literature research, case analysis. Based on the relevant literatures at home and abroad, the paper analyses, investigates and studies the patent license problems of technical standards based on standard life cycle from the perspective of the combination of patents and technical standards. The paper consists of several respects. First, it describes the existing theories, such as the definition, classification and properties of technical standards, the definition and legal attributes of patents, technical standard life cycle and so on. Secondly, it defines the connotation and characters of the patent license in technical standards, pointing out that the patent license in technical standards has public natures, needing to follow the principle of FRAND license, maybe encountering more compulsory license phenomenon, having the technology advantages by combination and so on. At the same time, the paper make a general description of the process of patent license which involves the production and sales of patented technical standard products, and the process is “production—barriers—negotiation—reconciliation—negotiation—reconciliation—end”. The process consists of four stages, phase of Infringement and Negotiation, phase of license production and friction negotiation, end phase of license, special phase of license, which according to the thing that parties reach an agreement and the thing that patent expires or is declared invalid. What’s more, the paper explains and illustrates the four stages by the domestic and foreign classic cases. Thirdly, the paper which integrates the theory of technical standard life cycle, analyses and studies the patent license problems with the development of technical standard life cycle(during the stages of germination, growth, maturity, and decline) from aspects of technology, market, mechanism, patentees, standard users based on the perspective of dynamic research. During the germination stage of patent technology standard, and the growth stage of patent technology standard before being locked, and the decline stage of patent technology standard, the standard users have selective rights, which can bring them advantages in the negotiation. At the same time, the patentees have to relax the permit conditions, in order to accumulate the users installed base and seek for the production enterprises’ supports, so there are a few patent license problems of technical standards. During the growth stage of patent technology standard after being locked, the users installed base of patent technology standard is up to the tipping point, which brings the explosive growth, so the patent technology standard becomes the market standard quickly. During the maturity stage of patent technology standard, the growth of the users installed base is slow down, but the increasing marks remain. During these two stages, the patentees have technological advantages, market advantages and the supports of mechanism. They abuse the patent rights by using their patents through taking a free ride on technical standard, which causes the patent license problems of technical standards, such as problems of patent "hostage", problems of patent "locking", problems of permit prices, problems of additional condition, issues of unilateral refusals to license and so on. In the end, based on the patent license problems which caused by the integration of technical standards and patents, the paper points out that the enterprises need to adopt different strategies during the different stages of the life cycle of the patent technology standard, and the standardization organizations who play a role of bridge should improve the functions of intermediary service, coordination and assistance, and self-discipline management, replenishing and partly replacing the government regulations, at the same time, the government can regulate the patent abuse of technical standards by “visible hands”, in order to reduce patent license problems of technical standards.